Google Drops Sweetener into Book Deal

In a hearing before Congress, Google says that out-of-print books available through the proposed Google Book Search deal will also be made available to retailers such as Amazon, Barnes & Noble or local bookstores.

WASHINGTON -- Google Chief Legal Counsel David Drummond waited and
politely smiled as Amazon, the Registrar of Copyrights and assorted
other critics Sept. 10 slammed the proposed Google Book Search deal
before a sparse panel of the House Judiciary Committee. Then, late in
the hearing, he dropped a surprise announcement.
"We believe strongly in an open and competitive market for digital
books. As part of that commitment, today we announced that for the
out-of-print books being made available through the Google Books
settlement, we will let any book retailer sell access to those books," Drummond said.
Drummond said Google will host the digital books online with retailers
such as Amazon, Barnes & Noble or local bookstores able to sell
access to users on any Internet-connected device they choose. The
announcement undercut much of the criticism leveled at Google over the
deal.

The settlement, which is currently under review by the Department of
Justice and subject to a New York court approval for possible
antitrust violations, would give Google the right to scan "orphan"
books -- books still under copyright but whose rights-holders cannot be
located -- for online users and potential sale in exchange for
concessions that include creating a nonprofit Book Rights Registry for
handling digital rights issues.

Drummond's announcement seemed to catch Amazon's Paul Misener, vice
president of Global Public Policy, flat-footed. Earlier in the hearing,
Misener testified that under the proposed settlement, "Except for works
of rights-holders who affirmatively opt out, the settlement would give
Google -- and only Google -- a license to digitize and sell every U.S.
book ever written."

He also characterized the settlement as "more like a joint venture than
a settlement. By definition, orphan [works] won't be doing any opting
in or out" of the deal. After Drummond's surprise announcement, Misener
simply said, "We're happy to work with individual rights-holders."

Marybeth Peters, the Registrar of Copyrights, was also highly critical
of the settlement, Google's new proposal to share orphan works rights
or not.

"In the view of the Copyright Office, the settlement proposed by the
parties would encroach on responsibility for copyright policy that has
traditionally been the domain of Congress," she testified. "We are
greatly concerned by the parties' end run around legislative process
and prerogatives, and we submit that this Committee should be equally
concerned."

Lawmakers were more sanguine about their legislative prerogatives.

Silicon Valley Rep. Zoe Lofgren (D-Calif.) noted that Congress has
attempted in the past to deal with the rights to orphan works. "We
wouldn't be here [today] if Congress had dealt with orphan works but it
failed to come up with a solution." Google, she said, had tackled the
problem by seeking forgiveness and not permission when it began
scanning books in 2004, a point also made by Rep. Lamar Smith (R-Tex.).

"Some complain that Google was able to negotiate this agreement only
after they allegedly infringed the rights of tens of thousands of
copyright holders," Smith said. "Without that action and the litigation
that led to the subsequent certification of a class, we would not be
here today."